Better Get a Lawyer, Son – Legal Representation in the Fair Work Commission

April, 2015

By Clayton Payne

Often the question arises as to whether a party can be legally represented at a formal hearing in the Fair Work Commission.

Representation is not necessarily permitted as a matter of course.

Normally, the Commission will consider whether such representation will allow a matter to be dealt with more efficiently. One factor often taken into consideration is the complexity of the matter.

What if an employee is represented by an experienced, union advocate? Even if that person is not a lawyer, will the Commission grant legal representation to the employer, where it has little or no experience in such matters?

This issue was considered in the recent Commission decision in Woodward v Greyhound Australia P/L.

In that case, an employee brought an unfair dismissal claim against his former employer. Presumably, the matter did not resolve at conciliation and was to proceed to a formal hearing.

The employer, who was represented by its human resources department, sought representation from a solicitor at the hearing. The employee was represented by a Senior Projects Officer employed by the Transport Workers Union (TWU).

The application was opposed by the employee.

Commissioner Cloghan, who heard the application, noted that while the employee’s representative was not legally qualified, he had appeared before the Commission in a range of matters over several years.

The Commissioner noted by way of contrast that the employer’s human resources department was not experienced in presenting cases before the Commission. It was also noted that its human resources manager and one of its human resources advisors would be required to give evidence at the hearing.

In deciding that the employer should be permitted legal representation, Commissioner Cloghan held:

“In this case, if permission was not granted for the Employer to be represented by a lawyer, an inequity or disparity would exist between representation by an experienced TWU advocate for the (employee), and a Human Resource person unfamiliar with dismissal proceedings in the Commission, for the Employer. If I did not allow representation by a lawyer or paid agent for the Employer, the Commission would be affirming that the above situation was just and reasonable. I am not able to come to that conclusion”.

The Commissioner decided in favour of the employer despite a submission that members of the employer’s human resources department would have had academic qualifications in their area of expertise and “ … as such would have studied units of Industrial Law”.

Conclusion

This decision shows that where there is a disparity in the level of experience of parties in proceedings before the Fair Work Commission, the Commission will often allow legal representation for a party, even if the other party is not represented by a legally qualified person.

In many cases where witnesses are to be called, and the matter has some complexity, the Commission will permit legal representation, particularly as it will assist in the efficient running of the hearing.

Contact Mills Oakley

For more information, please contact:

Ross Levin | Partner
Melbourne
T: +61 3 9605 0070
E: rlevin@millsoakley.com.au

Malcolm Davis | Partner
Sydney
T: +61 2 8035 7932
E: mdavis@millsoakley.com.au

Adam Lunn | Partner
Melbourne
T: +61 3 9605 0868
E: alunn@millsoakley.com.au

Lisa Anaf | Partner
Melbourne
T: +61 3 9605 0857
E: lanaf@millsoakley.com.au

 

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